Do I have to post bail?

The majority of Domestic Violence calls result in a felony arrest. The bail is set at $50,000, assuming just this one charge. The classification as a felony forces an individual to post bail in order to be released. Many bail agencies offer a lower percentage for their fee if the individual has retained an attorney. This percentage can typically be adjusted even though the attorney is retained after release on bond. When released, the person will receive a date to return to court. Should that person not appear in court, then the bail is forfeited. If the person does not bond out, then they would have to be brought to court within 48 hours of their arrest (excluding weekends and holidays.)

What happens with the arrest reports?

After the arrest, the arresting agency submits the file to the prosecuting agency. If being submitted as a felony, then that agency would be the District Attorney’s office. If, after their review, the arresting agency deems the facts more in line with a misdemeanor filing, then the file would be submitted to either the District Attorney’s office or the City Attorney, depending on the city where the incident occurred.

What determines if my case will be filed as a felony or as a misdemeanor?

Many factors determine how the case will be filed: injuries, if any, prior arrests for Domestic Violence, other related charges being filed, such as criminal threats, any attempt made to prevent the alleged victim from contacting the police, or any weapon involvement. Once received, the prosecuting agency will review the arrest reports and rap sheet to determine if any other charges should be filed in conjunction with the domestic violence charge. Many are under the impression that if there were no injuries, then there is no domestic violence, which is not true. Domestic Violence with injuries is filed as a PC 273.5 , which is a wobbler, meaning it can be filed as a felony or a misdemeanor. If there are no injuries, the matter will be filed as a 243(e)(1) , a misdemeanor domestic battery. Many times, both charges will be filed.

Are there any alternatives to the case being filed?

Short of a rejection, upon review, some agencies may decide to refer the matter to their office hearing department in lieu of an immediate filing. A letter will be sent to the individual (and his/her attorney) and to the alleged victim with a hearing date. On the date, a hearing officer will speak with both parties separately. After discussing the incident, the hearing officer has the discretion to not file the case, but to keep it on file should another incident occur.

What happens after the case is filed?

If the case is filed as a felony, then the arrested individual now referred to as the defendant will have to appear at every court appearance. At the arraignment, he/she will be served with a Restraining Order. If filed as a misdemeanor, the defendant must appear at the arraignment to be served with Restraining Order, but then the attorney will be able to make all future court appearances on his/her behalf.

What is a Restraining Order?

A Restraining Order is a court document, served on the defendant ordering the defendant to not have any contact with the alleged victim. There are varying degrees of restraining orders, ranging from no negative contact to a full stay away from the individual and no contact telephonically, email, text or through directly or through a third party. Violation of the order will result in county jail time.

What are the penalties?

As a felony, the maximum punishment could be one year in county jail, or up to four years in state prison. As a misdemeanor, the maximum punishment for a Penal Code §273.5 or Penal Code §243(e)(1) is 364 days in county jail. The penalties upon conviction or through a plea, in addition to jail time, if any, include 52 Domestic Violence classes, parole (if state prison is imposed), three years of probation (formal, if felony or summary if misdemeanor), payment of $500.00 (with a maximum payment of $5000.00) into the domestic violence fund and a possible fine and/or community service. Restitution to the victim can also be ordered for any medical treatment, including the cost of counseling.

What is I own weapons?

Pursuant to Penal Code §12021(c)(1) upon a conviction, or plea, a defendant will be prohibited from owning or possessing any firearms, for ten years if a misdemeanor conviction and for life is a felony conviction.

What is I am not a US citizen?

The conviction will also cause immigration consequences, such as deportation, exclusion from admission to this country, or denial or naturalization. If not a US citizen, it is imperative to consult with an immigration attorney, as we are criminal defense attorneys and will not provide immigration law advice.

How will a previous conviction for domestic violence affect me?

If there is one previous conviction for Domestic Violence within seven years, then additional custody time is will be ordered. If a Penal Code §273.5, then additional custody time ordered will be up to fifteen days in county jail. If a Penal Code §243(e)(1), the additional custody time is a minimum of 48 hours, which is discretionary upon a finding of good cause by the Judge. If there is more than one previous conviction within seven years, for Domestic Violence, then this custody time will increase.

What happens after I am convicted or I plead guilty?

If there is a felony conviction, the defendant must personally appear for all progress reports in the domestic violence counseling. If a misdemeanor conviction, some courts, pursuant to the Penal Code will require the defendant to appear for progress reports every three months. Other courts will permit the attorney to appear on his/her client’s behalf.

What if the alleged victim does not want to testify?

It is important to recognize that if the alleged victim is subpoenaed, then the individual needs to appear in court on the date specified in the subpoena. This is a court order and failure to comply can result in jail. If the defendant and the alleged victim are married, the marital privilege does not apply due to the charged offense of domestic violence. Pursuant to Penal Code §1219(b) , the alleged victim cannot be imprisoned for refusing to testify, but can be ordered to attend counseling and if after counseling still refuses to testify pay a fine.

Domestic Violence cases may still be able to be prosecuted without the alleged victim. Although statements made to law enforcement cannot be used(if the alleged victim refuses to testify) as they are deemed testimonial in nature If there are witnesses to the incident, 911 calls, statements made to emergency personnel, such as paramedics, nurses, doctors.

WHY WAS I ARRESTED FOR A ROBBERY AND NOT A THEFT? All I DID WAS TAKE A CELL PHONE FROM SOMEONE ON THE STREET.

WHAT IS THE DIFFERENCE BETWEEN THEFT AND ROBBERY?

A Theft becomes a Robbery (Penal Code section 211) when there is the use or threat of force or fear to the person whose property is being taken. The threat of force and/or fear can take place before, during, and even after the taking of the personal property.

WHAT IS A ROBBERY?

As defined in the applicable jury instruction, CALCRIM No. 1600: To prove that a person is guilty of Robbery, it must be proven that:

The defendant took property that was not his/her own;

The property was taken from another person’s possession and immediate presence;

The property was taken against that person’s will;

The defendant used force or fear to take the property or to prevent the person from resisting;

AND

When the defendant used force or fear, he/she intended to deprive the owner of the possession permanently, or for an extended period of time.

WHAT DOES IMMEDIATE PRESENCE MEAN?

The property taken does not have to be in the actual possession of the victim. The property can be near- by, such as in another room. “Immediate presence” means the property is sufficiently within his or her physical control. An employee can have what is called “constructive possession” over an employer’s property, such as an employee at Target, 7-Eleven, etc.

WHAT TYPE OF FORCE IS REQUIRED?

Any type of force elevates a Theft to a Robbery. It could be force or the threat of force. It does not have to involve a weapon. It could be a push, a grab or any type of unwanted (beyond what would be necessary to obtain the item) touching used to obtain the property.

WHAT TYPE OF FEAR?

Fear of injury to the person or the person’s family or property or immediate injury to someone else that is present.

WILL I BE CHARGED WITH FIRST DEGREE OR SECOND DEGREE ROBBERY?

First degree Robbery as stated in Penal Code section 212.5 states that if the victim is the operator of a bus, taxi, an individual in an inhabited home or any other type of building is first degree. Additionally, the Robbery of any person who is using or immediately after using an ATM is first degree. Any other Robbery is second degree Robbery. Robbing an individual at gun point would be second degree Robbery, however, a gun enhancement would be added to increase the time.

WHAT IS THE PUNISHMENT FOR FIRST DEGREE ROBBERY?

The punishment for first degree Robbery is 3, 4, or 6 years in state prison. The punishment for second degree Robbery is 2, 3 or 5 years.

IS ROBBERY A STRIKE?

Robbery, whether it is first or second degree is a strike and is deemed to be both serious and violent.

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